Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055
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